This week, news.com.au reported on the unjust and dangerous law that’s regularly used in Queensland courts to help rapists walk free.
It’s known as the “mistake of fact” defence, and it’s a section of Queensland’s criminal code that allows accused rapists to argue they were unaware their alleged victim didn’t consent to intercourse.
According to court records, the defence has been successfully used in numerous cases where a defendant has claimed a woman was too drunk to say no, or that they themselves were too drunk to know what they were doing when they attacked her.
Defendants’ counsel has also raised the mistake-of-fact defence where a woman was asleep as the attack began and froze with fear once she stirred into consciousness.
It has also been applied to cases where a victim didn’t speak enough English to say no, had a mental disability that prevented her making a verbal protest or even when she had been beaten into submission and submitted to rape in the hope it would save her life.
If you’re thinking this law sounds like some outdated 19th century throwback from a time when women had roughly the same value as a head of livestock, you’d be right.
The law has been part of Queensland’s criminal code since 1899. But for a modern-day defence lawyer, it’s an enormously useful trump card that can be applied to almost any rape accusation to help their clients walk free from a trial, or dangled as a threat to stop a case making it to court at all. It’s a terrible injustice to victims, an insult to women everywhere and frankly, even an insult to men. And it’s time it was abolished.
At the heart of this defence is the exhausting and utterly false trope that women are fundamentally manipulative temptresses, luring hapless men to rack and ruin with their confusing mixed signals.
How is a man supposed to know what a sleeping woman does or doesn’t want, this loophole suggests, if she doesn’t even make a noise when he forces himself inside her?
Are blokes really supposed to just guess that a woman who doesn’t speak English didn’t really want it when she was overpowered? If those five margaritas she drank didn’t say “take me home and violate me senseless”, then what in the world does?
Here’s a newsflash for every man in Australia, one that I would hope most don’t need to be told. No true man, no man with a shred of decency or respect for a woman’s autonomy and safety would think that having sex with a woman in any of those circumstances was OK.
The idea that a man can simply become blinded and befuddled by a momentary flash of confusion is not only a cruel impediment to a victim’s right to justice, but frankly doesn’t credit men with much of a brain either.
Consent is really not that hard to understand and it shouldn’t be an understanding that vanishes from your head when you’re overcome by lust or if you or both parties have had a few drinks.
I know that stealing is wrong and that if I do it, I am criminally liable. I don’t suddenly forget this fact because I see a car that doesn’t belong to me. No, not even if that car is left unlocked.
If there’s any doubt about whether or not you should be doing something to a woman, the solution is simple. Don’t. And if you still do, then the onus should be on our justice system to force you to face the consequences.
Various advocacy groups have been petitioning for years for the Queensland government, specifically Attorney-General Yvette D’Ath, to review this outdated part of the state’s criminal code law, something she finally agreed to do this week.
In NSW, a man can try to argue he believed a victim to be consenting till he’s blue in the face but if the facts show she was not, then the court can rule he had what Queensland Women’s Legal Service solicitor Julie Sarkozy describes as “reckless indifference” to her.
We don’t allow reckless drivers off the hook because it didn’t occur to them their actions might kill someone.
But in Queensland, that reckless indifference towards a woman who you sexually assault is allowed to go unpunished.
And what that tells a woman who is raped in Queensland is that she asked for it. Or she encouraged it. Or even if she didn’t, it’s all a bit grey area, too hard, too confusing, go away, move on, forget that it happened.
It’s 2019, not 1899, and it’s generally agreed that women are real, live humans, with thoughts, feelings and the right not to be forced into sex when they don’t want it. And the fact that we’re having to remind our out-of-touch legal system of this truth is a farce and a tragedy that needs to change now.
Alex Carlton is a freelance writer. Continue the conversation @Alex_Carlton